An E&E Special Report

PARIS AGREEMENT

Can the U.S. weaken its target? The answer may hinge on a word

The future of U.S. participation in the Paris Agreement may hinge on how the Trump White House reads a single sentence.

Sources briefed on Thursday's White House meeting over whether America will remain a party to the landmark climate change accord said discussion broke down around conflicting interpretations of Article 4.11.

It reads: "A party may at any time adjust its existing nationally determined contribution [NDC] with a view to enhancing its level of ambition."

So can the United States reduce its Paris Agreement promise to cut emissions 26 to 28 percent below 2005 levels by 2025 and replace it with a laxer goal that better reflects President Trump's agenda? Conservatives like Rep. Kevin Cramer (R-N.D.) and corporate leaders urging Trump to remain in the global accord say yes. Hardline opponents who want Trump to deliver on his campaign promise to "cancel" the Paris deal insist that the only solution is to withdraw from the deal or risk damaging U.S. credibility by falling short of the pledge.

"Obama made a promise that is going to haunt Trump as long as he continues to honor that promise," said Competitive Enterprise Institute Senior Fellow Chris Horner.

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Debate has swirled around the Paris Agreement since Trump took office. Factions have emerged, with Secretary of State Rex Tillerson and Trump's son-in-law and senior adviser, Jared Kushner, advising the president to stay in, while U.S. EPA Administrator Scott Pruitt and White House chief strategist Steve Bannon have urged him to pull out.

The issue is expected to be discussed today when Trump administration lawyers huddle to discuss the options, one person with knowledge of the meeting told E&E News. The "stay" faction appears to have gained traction recently inside the White House counsel's office, headed by Don McGahn. But it relies heavily on the possibly problematic assumption that a country can revise its target — its NDC — downward.

Obama administration officials who helped craft the deal say weakening the target is indeed possible. Not only that, but it was intentionally constructed with that possibility in mind. And like so many things in the deal that saw every semicolon subject to hours of negotiation, the opening comes down to a single word: may.

Diplomats gathered at the suburban Paris airfield in 2015 weighed whether to try to include legal language requiring countries to increase ambition and never to backtrack. That objective would have required the "may" in Article 4.11 to be swapped for a "shall." Some thought that requirement would help ensure that the world would reach the level of emissions reductions that could deliver the long-term goal of keeping warming to safe levels.

Todd Stern, the former U.S. special envoy for climate change, said that idea was deliberately rejected. "We did not want to foreclose this," he said.

The U.S. position in those talks, which won out, "was that that was a good prescription for countries to lowball what they were going to do in their targets out of a fear that if circumstances came up that were difficult, they would nonetheless be stuck — that there was nothing they could do," Stern said.

It had happened before. Japan lowered its 2020 emissions reduction pledge in 2013 after shuttering nuclear capacity in the wake of the Fukushima Daiichi nuclear power plant disaster four years earlier. And while that led to pushback from some quarters, Japan stayed a part of the process.

"The negotiators who wrote this language were completely capable of writing language that said, 'And the party may not go backward,'" said Stern. "But it doesn't say that. And it doesn't say that on purpose."

Sue Biniaz, a longtime senior U.S. climate negotiator who recently left the State Department, was directly involved in the design of Article 4.11.

"There shouldn't be any doubt about the Agreement on this point," she said in an email to E&E News. "Targets are nationally determined, and a party can change its target even after it has been submitted. While Parties are encouraged to make changes in the more ambitious direction, there is no prohibition on changing in the other direction."

Far from barring parties from ratcheting down the stringency of their targets, the sentence was aimed at encouraging those that had offered pledges to Paris that were based on 2030 reduction targets to revise them early, said Stern.

"The bottom line is this: If the administration sets out to renegotiate Paris and either cannot do so or fails to achieve the objective they have in mind, they can always opt out at that point," said Scott Segal of Bracewell LLP. "Nothing is risked by trying to get a better deal at the outset."

Environmental groups have blasted pro-Paris members of Trump's team for floating the idea of a laxer target, and other countries are considered likely to push back strenuously if it happens. But another member of the Obama-era State Department climate team said the Trump team should revise its target to preserve the integrity and transparency of the U.N. process. The president has already terminated many Obama-era policies like U.S. EPA's Clean Power Plan that would have made progress toward the 26 to 28 percent pledge.

CEI Senior Fellow Myron Ebell said he believes the language is clear and that it binds countries to their promise. If U.N. Framework Convention on Climate Change officials agree that Article 4.11 does not bar countries from weakening their commitments, he said, they should come forward and say it before Trump makes up his mind.

"If people really believe that who are involved in it, then I would expect that they will be in the next few days making public attestations of that understanding, because otherwise, the remainders are going to lose the argument," he said.

A UNFCCC spokesman said the Trump administration has not asked the body to clarify the language.

But Stern said U.N. bodies aren't the final word on the meaning of U.N. agreement language the way the U.S. Supreme Court is for American law.

"Parties always have to hash that stuff out," he said. "There's nobody who opines on that."